The ruling of the Supreme Court has an immediate effect on the retired woman who made the trial – María Isabel García – and about 2,000 similar cases with favorable second-instance sentences – such as those of the Chamber of Paraná and Chamber II of the Chamber of Security – appealed by the Government to the High Court.
The rest of the retirees and pensioners who have discounts of Gains – 300,000 between nationals and pensioners – will continue to withhold the tax. And those who are in a situation similar to the witness case, could initiate a trial claiming the same treatment.
This is because the majority of the Court declared the unconstitutionality of Profits in the Garcia case with the scope indicated in the ruling. It does not have a general or collective character, which opens the doors to greater litigation.
The ruling mentions that the retired woman was 79 years old when she started the trial in 2015, suffered from health problems and received discounts of 30% of the salary.
Consequently, says the judgment of the Court, at the time of deduction of earnings should be considered the greater vulnerability of the petitioner, “product of advanced age or other particular situations such as disability” that “would allow to distinguish some retirees, pensioners, retirees or subsidized by others. “
The ruling objects to the deduction of Earnings because in cases of aging, illness or disability the retiree must “have more resources to not seriously compromised their existence and / or quality of life and the consequent exercise of their fundamental rights.”
With these considerations, the ruling states that Congress should amend the current Income Law, giving “a differentiated treatment for the protection of retirees in conditions of vulnerability due to old age or illness, which combines this relevant factor with that of potential tax capacity” . No deadline is set for Parliament to consider the issue.
For this reason, lawyer and foresight specialist Guillermo Jáuregui told Clarín that those “retired or pensioners who are considered in a similar situation as García, could promote the corresponding legal action.” Litigation is one of the ways for retirees to reach the benefit of not paying Earnings. While “Congress should amend the art. 79, inc. c) of the law contemplating older or sick or disabled taxpayers, and in these cases taking care that the scale does not exceed a certain percentage or exempting them “.
In addition, as of 2017, the non-taxable minimum for retirees and pensioners was raised to 6 minimum salaries -now $ 62,462-, with quarterly adjustments. “This change can make the current situation of Garcia, in terms of the percentage of retention is very different. Each retiree must analyze their tax situation before facing a demand for that issue. “
The lawyer Adrián Troccoli recognizes that “the ruling of the Court in principle establishes that there must be a situation of vulnerability in order to be exempted from the payment of Profits. However, in the particular case, it does not require reliable evidence, and the doctrine will surely be extended to all judgments coming from the Chamber of Paraná and from Room 2 of the Social Security Chamber. “
Consequently, “those who today pay taxes, have two ways: expect Congress to follow the request of the Supreme Court and modify the Law of Profits or initiate a legal action. It would be ideal for Parliament to resolve the issue quickly to avoid the collapse of the Courts. ” And “if a bill is dealt with, the Court does not demand that the pension be waived for retirees, but that it give them greater protection than the current one”.